Petitioner Seeks Modification for Out of State Summer Visit

A New York Family Lawyer said this case involves a petition to enforce visitation filed by A, the father of his two children, a petition and order to show cause brought on by B, the mother in the Supreme Court, New York County to modify visitation and a petition and order to show cause to enforce summer visitation without the State of New York brought on by A, the father. Aside from these three proceedings brought before the court involving a ruling on the same issues, various other criminal and civil actions both in the States of New York and Texas are now pending between various members of the respective families.

A New York Child Custody Lawyer said the two children who are subject of this litigation remain well-adjusted but a bit disdainful over their family feud and they are growing impatient for the resolution of this pointless battle.

A Queens Family Lawyer said the parties herein were domiciled in New York until they moved to the State of Texas where A established lucrative business connections involving dental clinics. A and B were divorced there by decree entered on 2 September 1981. Custody was awarded to B with liberal detailed visitation to A.

A Queens Custody Lawyer said the decree reflects the minutiae of detail which ordinarily accompanies bitter negotiations and is specific about every conceivable contingency down to division of the teaspoons. Without belaboring the details of custody and visitation, the crucial portion of this decree upon which much litigation has and will center involves a provision that the children are not to be removed from the State of Texas by their mother in the absence of Court permission unless the wife remarries. On 3 December 1981, the wife, relying on a “marriage” which was all form and no substance, removed the children from the State of Texas to reestablish her domicile with them within New York State. Her total absence from Texas was some 27 months.

Needless to say, much litigation followed in the State of Texas, all at the instance of the enraged father, with the exception of one proceeding in the nature of habeas corpus successfully brought by the mother when the father, after one visit, apparently did not return the children. In spite of the fact that the detailed visitation contemplates a close-at-hand situation between father and children, there has been a steadfast refusal on either side to be flexible in keeping with the realities of the changed situation which has gone as far as the father’s flying to New York for weekends.

The validity of the mother’s de facto residence in New York has never been resolved. Time after time the father has attempted to bring his claimed violation of its decree before the Texas Court in various forms via an esoteric assortment of proceedings none of which have as yet been adjudicated on the merits of this issue. There is now pending however, in the District Court of Harris County, State of Texas, a motion brought by the father to adjudicate the mother in contempt, directly involving this issue. It was brought on as the latest of an ongoing series of proceedings in that State only after the three applications before us were brought and issue joined in this Court.

Jurisdiction in conformity with the Uniform Child Custody Jurisdiction Act codified in New York as Domestic Relations Law), Article 5-A and the Parental Kidnapping Prevention Act of 1980 is the question to be addressed before the court. Both statutes distinguish between jurisdiction to enforce the decree of a sister state as opposed to jurisdiction to modify it. It must be realized in the context of this litigation that while the assumption by a state of enforcement jurisdiction is an act consistent with the terms of a decree, the assumption of modification jurisdiction is essentially hostile to it.

In Fernandez v Rodriguez, it was held that in order to determine whether this court may properly assume modification jurisdiction, it is first necessary to note that while the underlying policies of the respective acts are identical, namely, to curtail the ‘childnapping’ and forum shopping which in the long run had generated instability for children in the past. They contain fundamental differences and where they do, the PKPA must be deemed controlling. The PKPA as a federal enactment implements a policy of federal pre-emption which must be accorded priority by virtue of the Supremacy Clause of the United States Constitution.

Pursuant to the terms of both acts, if a court of a sister state has made a custody decree, a court of this state may modify such determination only if: it has jurisdiction to make such a child custody determination; and, the court which rendered the decree no longer has jurisdiction or it has declined to exercise such jurisdiction to modify such determination.

Accordingly, when a court of this state is faced with a question as to whether it may properly assume modification jurisdiction, its inquiry must be threefold: first, it must be determined whether or not this court would have jurisdiction to render the decree in the first instance; second, whether or not the rendering state had jurisdiction to do so under provisions in substantial compliance with either the UCCJA or of the PKPA; third, whether or not at the time a second proceeding is commenced in this state, the rendering sister state court no longer had jurisdiction or declined to exercise it.

In defining the circumstances under which the respective states would have jurisdiction, the UCCJA and the PKPA differ. Nevertheless, a complete analysis of both statutes leads the court to conclude that no such modification jurisdiction exists at the present time.

The bases for UCCJA jurisdiction are specifically and exclusively enumerated in DRL Section 75-d. One of them must be met for this court to exercise jurisdiction herein. Matter of Potter v. Potter reads in relevant part as follows:

“1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree only when:

(a) this state (i) is the home state of the child at the time of commencement of the custody proceeding, or (ii) had been the child’s home state within six months before commencement of such proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(b) it is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is within the jurisdiction of the court substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

(c) the child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child; or

(d) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.”

The court rejects the claim of emergency under Section 75-d(1)(c). This claim is predicated upon the alleged violent, often bizarre behavior of the father and its impact upon the girls. The court notes that the claims of bizarre behavior are reciprocal. Proof that the court deals with two very normal but angry people may be found simply by speaking to two lovely children who could never have turned out as they did if one percent of the mutual condemnation of the moving papers were true. In short, there are two hostile people whose behavior fits the mold of countless persons involved in matrimonial proceedings who are rational except toward each other. If anything, the girls have learned–as we all must in the process of growing–that adults too often act like children.

Applying the salient facts herein to the statute it is clear that this court would, in the absence of the pre-existing Texas decree, have jurisdiction to render a custody award pursuant to Section 75-d(1)(a). New York would qualify as the home state of the two subject children. The wife and the girls have resided in New York since 3 December 1981 a period well over the six months necessary to meet the statutory definition of home state found in DRL § 75-c(5):

Home state is defined as the state in which the child at the time of the commencement of the custody proceeding has resided with his parents, a parent or a person acting as parent for at least six consecutive months.

Since the original exercise of Texas jurisdiction was in all respects in substantial accord with both the UCCJA and PKPA jurisdictional provisions, the only remaining stumbling block to the exercise of this court’s modification jurisdiction is the third of the three threshold questions outlined earlier. The court must still refuse to exercise its modification jurisdiction unless the sister state court no longer has jurisdiction or has declined to exercise it, thus vesting so called “vacuum jurisdiction” in this court.

Under the express terms of PKPA tit. 28 § 1738A (but not in the UCCJA), the jurisdiction of a state which has made a child custody determination in accordance with federal standards continues as long as that state remains the residence either of the child or of any contestant, and that court has jurisdiction to determine custody under its own laws. Therefore, according to the PKPA, the father’s continued presence in the state of Texas vests continuing jurisdiction in that state unless Texas itself declines to exercise it.

The court fails to find that the state of Texas has refused to exercise its jurisdiction within the meaning of the statute. Texas law prohibits any proceeding to amend a custody decree within the first year of its life unless an imminent emergency is present requiring forthwith court intervention.

Apparently, finding no emergency to serve as a threshold to exercise of its jurisdiction to modify, the Texas court has disposed of the father’s numerous proceedings summarily. The Texas decree will become modifiable on 2 September 1982. Further complicating the situation is a Texas statute divesting its courts of jurisdiction in custody matters when the subject children have been out of that State for six months or more.

The court have been unable to locate any authority in that state construing provisions of Texas decrees similar to the one at issue either from the factual threshold of whether or not a marriage in form only qualifies as a proper basis for removal of subject children from that state; or, assuming arguendo a finding of violation of that decree, whether the underlying illegality of removal from that state in violation of its decree tolls the running of the six month period for divestiture of Texas jurisdiction by its own statutes. So long as Texas, by its own statutes, will have at least prima facie jurisdiction to modify its own decree once the period of non-modifiability expires on 2 September 1982, little over one month from now, we are of the opinion that the assumption of “vacuum” jurisdiction during the temporary period of non-modifiability would be an abuse of discretion on our part lacking any Texas authority to the effect that this one year period is one in which no jurisdiction exists there as opposed to jurisdiction which in fact exists but is not exercised.

In either event, lacking clarification by the Texas court of its stance as regards its own statutes, we decline to exercise “vacuum” jurisdiction to modify. The court considers Michigan Case of Green v. Green holding that Texas’ refusal to modify its decree vests “vacuum” jurisdiction in that court. That case is distinguishable first, on the basis of the as yet unadjudicated validity of the removal of the children from Texas as affected by the re-marriage terms of the decree; second, by the almost de minimum period of one month now remaining until Texas can assume jurisdiction under its own statutes. Our stance is bolstered by the pendency of proceedings in that state at this very minute which should serve to clarify Texas’ legal posture.

The visitation provisions of the divorce decree have become archaic and unworkable. As they stand, a burden is presented to both sides. This much has been agreed between the parties who have even attempted at the Court’s urging to renegotiate these provisions. The court’s refusal to accept jurisdiction is, by its own terms, temporary. In a very short time, the constraints set forth should be removed by action of the State of Texas. In that event, the undersigned will accept jurisdiction and will accede to the joint wish of the opposing parties to retain all proceedings before himself on condition first, that the request continue to be bilateral; second, that the parties understand that our personal concept of the court’s function in matters of this type is activist and committed to the proposition that once it has made its order, no nonsense will be tolerated insofar as obedience is concerned.

Petitions granted and denied without prejudice as appropriate.

New York Child Custody Lawyers, New York Child Visitation Lawyers and Stephen Bilkis & Associates are experts in custody hearings like the case narrated above. Numerous accounts of similar import have been favorably represented by our firm. If you want to be guaranteed with your child’s custody and protection of your right as a parent, dial our toll free number now or visit us at our place of business.